[free-sklyarov] RE: FJIA etc

David Haworth david.haworth at altavista.net
Wed Nov 7 00:19:07 PST 2001

On Tue, Nov 06, 2001 at 12:28:18PM -0500, Neon Samurai wrote:
> A jury can only find whether or not
> Dmitry has violated the DMCA; and a jury properly instructed, I believe,
> would find that Dmitry broke the law.  It's a very similar situation to
> 2600's in that Judge Kaplan ruled that simply by DeCSS existing, it
> violated the DMCA.

Judge Kaplan may had been able to do that in the Goldstein case
(that was a civil case - no jury). In this case, as you say, the jury
will decide whether Dmitry is innocent - but it's far from being
as clear cut as you think. There are lots of open questions:
 - is source code a "device" as defined by the DMCA? I hope that's
   not true.
 - is a "compiled program" a device as defined by the DMCA? ISTR
   Congress' intention was that it shouldn't be.
 - is Adobe's E-Book reader an "effective technological measure"
   as defined in the DMCA? I don't think it is, and I think many
   others in the crypto field will agree.
 - did Dmitry "distribute" (traffic, whatever) anything? If so, what?
 - did he do it for commercial gain? His company did make a charge for
   the software, but I don't think Dmitry made any commercial gain.
   It's far from clear even if Elcomsoft made any commercial gain
   from the limited number of copies they sold or expected to sell.


David Haworth
Baiersdorf, Germany
david.haworth at altavista.net
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